Common use of Parachutes Clause in Contracts

Parachutes. Notwithstanding any other provision of this Agreement, if all or any portion of the payments and benefits provided under this Agreement (including without limitation any accelerated vesting), or any other payments and benefits which Executive receives or is entitled to receive from the Employer or an affiliate, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the imposition on Executive of an excise tax under Section 4999 of the Code or any successor thereto, then, in addition to any other benefits to which Executive is entitled under this Agreement, Executive shall be paid by the Employer an amount in cash equal to the sum of the excise taxes payable by Executive by reason of receiving Parachute Payments plus the amount necessary to put Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 20)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). The amount of any payment under this Section 20 shall be computed by a certified public accounting firm of national reputation reasonably selected by the Employer. Executive and the Employer will provide the accounting firms with all information which any accounting firm reasonably deems necessary in computing the Parachute Gross-up to be made available to Executive. In the event that the Internal Revenue Service or a court, as applicable, finally and in a decision that has become unappealable, determines that a greater or lesser amount of tax is due, then the Employer shall within five business days thereafter shall pay the additional amounts, or Executive within five business days after receiving a refund shall pay over the amount refunded to the Employer, respectively; provided that (i) Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the Employer, and shall provide notice to the Employer of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Employer shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay all costs (including without limitation legal and other professional fees) associated therewith.

Parachutes. Notwithstanding any other provision provisions of this AgreementAgreement to the contrary, if all in the event that any payments or any portion of benefits received or to be received by Executive in connection with Executive’s employment with Company (or termination thereof) would subject Executive to the payments and benefits provided excise tax imposed under this Agreement (including without limitation any accelerated vesting), or any other payments and benefits which Executive receives or is entitled to receive from the Employer or an affiliate, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute PaymentExcise Tax”), and would result in if the imposition on Executive of an excise net-after tax under Section 4999 of the Code or any successor thereto, then, in addition to any other benefits to which Executive is entitled under this Agreement, Executive shall be paid by the Employer an amount in cash equal to the sum of the excise taxes payable by Executive by reason of receiving Parachute Payments plus the amount necessary to put Executive in the same after-tax position (taking into account any and all applicable federaltaxes payable by Executive, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 20)Excise Tax) as if no excise taxes had been imposed that Executive would receive with respect to Parachute Payments (such payments or benefits is less than the “Parachute Grossnet-up”). The after tax amount Executive would receive if the amount of any payment under such payments and benefits were reduced to the maximum amount which could otherwise be payable to Executive without the imposition of the Excise Tax, then, and only the extent necessary to eliminate the imposition of the Excise Tax, such payments and benefits shall be so reduced. Any reduction in payments and/or benefits required by this Section 20 shall be computed by a certified public accounting firm 23 will occur in the following order: (a) reduction of national reputation reasonably selected by the Employer. Executive cash payments; (b) reduction of vesting acceleration of equity awards; and the Employer will provide the accounting firms with all information which any accounting firm reasonably deems necessary in computing the Parachute Gross-up to be made available (c) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the Internal Revenue Service reverse order of the date of grant for Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a court, as applicable, finally and in a decision that has become unappealable, determines that a greater or lesser amount of tax is due, then pro-rata basis. In no event shall the Employer shall within five business days thereafter shall pay the additional amounts, or Executive within five business days after receiving a refund shall pay over the amount refunded have any discretion with respect to the Employerordering of payment reductions. Unless the Company and Executive otherwise agree in writing, respectively; provided that any determination required under this Section 23 will be made in writing by a nationally recognized certified public accounting firm selected by the Company, the Company’s legal counsel or such other person or entity to which the parties mutually agree (i) the “Accountants”), whose determination will be conclusive and binding upon Executive shall not initiate any proceeding or other contests regarding these mattersand the Company for all purposes. For purposes of making the calculations required by this Section 23, other than at the direction Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Employer, Code. The Company and shall provide notice Executive will furnish to the Employer of any proceeding or other contest regarding these matters initiated by Accountants such information and documents as the Internal Revenue Service, and (ii) the Employer shall be entitled Accountants may reasonably request in order to direct and control all such proceeding and other contests, if it commits to and does pay make a determination under this Section 23. The Company will bear all costs (including without limitation legal and other professional fees) associated therewiththe Accountants may reasonably incur in connection with any calculations contemplated by this Section 23.

Parachutes. Notwithstanding If any amount payable to or other benefit receivable by the Executive pursuant to this Agreement is deemed to constitute a Parachute Payment (as defined below), alone or when added to any other provision of this Agreementamount payable or paid to or other benefit receivable or received by the Executive which is deemed to constitute a Parachute Payment (whether or not under an existing plan, if all arrangement or any portion of the payments and benefits provided under this Agreement (including without limitation any accelerated vestingother agreement), or any other payments and benefits which would result in the imposition on the Executive receives or is entitled to receive from the Employer or of an affiliate, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the imposition on Executive of an excise tax under Section 4999 of the Code or any successor thereto, then, in addition to any other benefits to which the Executive is entitled under this Agreement, the Executive shall be paid by the Employer Company an amount in cash equal to the sum of the excise taxes payable by the Executive by reason of receiving Parachute Payments plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation and on any payments under this Section 20)7.16) as if no excise taxes had been imposed with respect to Parachute Payments (the Payments. “Parachute Gross-up”)Payment” shall mean a “parachute payment” as defined in Section 280G of the Code. The amount of any payment under this Section 20 7.16 shall be computed by a certified public accounting firm of national reputation reasonably selected by the EmployerCompany and reasonably acceptable to the Executive, subject to the last sentence of this Section 7.16. Notwithstanding any other provision of this Section 7.16, if a reduction in Parachute Payments by 10% or less would cause there not to be excise taxes imposed upon the Executive and under Section 4999 of the Employer will provide Code (as determined by the accounting firms with all information which any accounting firm reasonably deems necessary in computing referred to above, but subject to the Parachute Gross-up to last sentence of this Section 7.16), then (i) no payments shall be made available to the Executive under the foregoing provisions of this Section 7.16, and (ii) the payments and benefits provided under this Agreement shall be reduced to the extent necessary so that no excise taxes would be imposed upon the Executive. In the event that the Internal Revenue Service or a court, as applicable, finally and in a decision that has become unappealable, determines decides that a greater or lesser amount of tax is duethe determinations by the accounting firm under this Section 7.16 are incorrect, then the Employer parties shall within five business days thereafter shall pay the additional amounts, or Executive within five business days after receiving a refund shall pay over the amount refunded take such corrective actions as are necessary to the Employer, respectivelyconform to such final decision; provided that (i) the Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the EmployerCompany, and shall provide notice to the Employer Company of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Employer Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay all costs (including without limitation legal and other professional fees) associated therewith.

Parachutes. Notwithstanding any other provision of this Agreement, if all or any portion of the payments and benefits provided under this Agreement (including without limitation any accelerated vesting), or any other payments and benefits which Executive receives or is entitled to receive from the Employer or an affiliate, or any combination of the foregoing, would constitute an excess “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “"Parachute Payment”"), and would result in the imposition on Executive of an excise tax under Section 4999 of the Code or any successor thereto, then, in addition to any other benefits to which Executive is entitled under this Agreement, Executive shall be paid by the Employer an amount in cash equal to the sum of the excise taxes payable by Executive by reason of receiving Parachute Payments plus the amount necessary to put Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 20)) as if no excise taxes had been imposed with respect to Parachute Payments (the “"Parachute Gross-up”"). The amount of any payment under this Section 20 shall be computed by a certified public accounting firm of national reputation reasonably selected by Executive and reasonably acceptable to the Employer. If the Employer desires to dispute the computation rendered by such accounting firm, the Employer may select an alternative certified public accounting firm of national reputation to perform the applicable computations. If the two accounting firms cannot agree upon the computations, Executive and the Employer will jointly appoint a third certified public accounting firm of national reputation, reasonably acceptable to Executive and the Employer, within 10 calendar days after the two conflicting computations have been rendered. Such third accounting firm shall be asked to determine within 30 calendar days the computation of the Parachute Gross-up to be paid to Executive, and payments shall be made accordingly. In any event, the Employer will pay to Executive or pay on Executive's behalf the Parachute Gross-up as computed by the accounting firm initially selected by Executive by the time any taxes payable by Executive as a result of the Parachute Payments become due, with Executive agreeing to return the excess amount of such payment over the final computation rendered from the process described in this Section 20. Executive and the Employer will provide the accounting firms with all information which any accounting firm reasonably deems necessary in computing the Parachute Gross-up to be made available to Executive. The costs and expenses of all of the accounting firms retained to perform the computations described above shall be borne by the Employer. In the event that the Internal Revenue Service or a court, as applicable, finally and in a decision that has become unappealable, determines that a greater or lesser amount of tax is due, then the Employer shall within five business days thereafter shall pay the additional amounts, or Executive within five business days after receiving a refund shall pay over the amount refunded to the Employer, respectively; provided that (i) Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the Employer, and shall provide notice to the Employer of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Employer shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay all costs (including without limitation legal and other professional fees) associated therewith.

Parachutes. Notwithstanding If any amount payable to or other benefit receivable by the Executive pursuant to this Agreement is deemed to constitute a Parachute Payment (as defined below), alone or when added to any other provision of this Agreementamount payable or paid to or other benefit receivable or received by the Executive which is deemed to constitute a Parachute Payment (whether or not under an existing plan, if all arrangement or any portion of the payments and benefits provided under this Agreement (including without limitation any accelerated vestingother agreement), or any other payments and benefits which would result in the imposition on the Executive receives or is entitled to receive from the Employer or of an affiliate, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the imposition on Executive of an excise tax under Section 4999 of the Code or any successor thereto, then, in addition to any other benefits to which the Executive is entitled under this Agreement, the Executive shall be paid by the Employer Company an amount in cash equal to the sum of the excise taxes payable by the Executive by reason of receiving Parachute Payments plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation and on any payments under this Section 20)7.16; at minimum this means that the payment shall be “grossed-up” as described in Section 3.5, taking into account any additional taxes that the Executive may owe due to any Parachute Payment) as if no excise taxes had been imposed with respect to Parachute Payments (the Payments. “Parachute Gross-up”)Payment” shall mean a “parachute payment” as defined in Section 280G of the Code. The amount of any payment under this Section 20 7.16 shall be computed by a certified public accounting firm of national reputation reasonably selected by the EmployerCompany and reasonably acceptable to the Executive, subject to the last sentence of this Section 7.16. Notwithstanding any other provision of this Section 7.16, if a reduction in Parachute Payments by 10% or less would cause there not to be excise taxes imposed upon the Executive and under Section 4999 of the Employer will provide Code (as determined by the accounting firms with all information which any accounting firm reasonably deems necessary in computing referred to above, but subject to the Parachute Gross-up to last sentence of this Section 7.16), then (i) no payments shall be made available to the Executive under the foregoing provisions of this Section 7.16, and (ii) the payments and benefits provided under this Agreement shall be reduced to the extent necessary so that no excise taxes would be imposed upon the Executive. In the event that the Internal Revenue Service or a court, as applicable, finally and in a decision that has become unappealable, determines decides that a greater or lesser amount of tax is duethe determinations by the accounting firm under this Section 7.16 are incorrect, then the Employer parties shall within five business days thereafter shall pay the additional amounts, or Executive within five business days after receiving a refund shall pay over the amount refunded take such corrective actions as are necessary to the Employer, respectivelyconform to such final decision; provided that (i) the Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the EmployerCompany, and shall provide notice to the Employer Company of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Employer Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay all costs (including without limitation legal and other professional fees) associated therewith.